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The government shutdown: River rights being wrongfully denied
Photograph by Carolyn Kaster
The last few days of the government shut down have been a prime example of the serious legal problems associated with national public river access. Public rights to access rivers are being wrongfully denied. Just because politicians can’t settle on the nation’s funding does not mean accessing rivers—which are public passage ways—should be denied.
Many people have now been kept out from recreating on rivers that flow through national park lands. One particular tragedy—from this week and from the past several decades—has been the Grand Canyon. NPR reported yesterday about Scott Lee, a father and leader of a rafting group from Conway, New Hampshire. Mr. Lee had been trying to get a permit, via the lottery system, to float down the Grand Canyon for over 10 years. Not only that, but his group had to prepay the park system about $2,000 in fees. These restrictions are wrongful because our Congress has said that rivers will be “forever free,” “without any tax, impost, or duty therefor,”(1) and “shall be deemed to be and remain public highways.” (2)
After Scott and his group have spent over $30,000 on the trip and pulled his 13-year-old son out of school, a blockade and armed rangers are blocking him and his group of 15 people from putting in to raft down the river. All the group needs is simply to access the put-in (which is the only put-in for the Grand Canyon), and float down the river like people have been doing for thousands of years. The park rangers don’t have any responsibility once the group embarks and goes down the river. So, what is the justification for keeping the public out?
Photo courtesy Ceiba Adventures
Unfortunately, Scott is one of many people this has happened to. The biggest issue with public river access is a lack of understanding the law our nation has already established. Park rangers are simply doing what they are told. All camping on the Grand Canyon is below the high water mark, and is therefore part of the bed and banks of the river itself, not part of the surrounding upland. Keeping the public from accessing rivers just because politicians can’t get their act together in Washington is incredibly wrongful and unjustified.
So what can you and I do to solve this crisis of public rights on rivers being denied? How can we prevent these tragedies from happening? By educating ourselves and each other on what the law says, and convincing the powers that be to apply it. Specifically, the river permit system is a topic NOR will be addressing in the coming months. We will be working to eliminate the unlawful aspects of the permit systems at the Grand Canyon and other rivers around the US. The government should not be blocking public access to rivers. NOR is the organization that will be navigating this issue, and your memberships and donations help to solve this river access denial crisis.
May this be an eye-opening event for everyone about the incredible need for public rights on rivers—to kayak, raft, canoe, fish, fowl, and recreate—to be recognized now and in the future.
For the link to the story covered by NPR, click here
(1) “Forever free:” Northwest Ordinance of 1787, reenacted Aug. 7, 1789, chapter 8, 1 Stat. 50.
In the very first Act of Congress, Congress addressed the status of rivers in U.S. territory west of the original thirteen colonies, saying, “the navigable waters leading into the Mississippi and Saint Lawrence, and the carrying places between the same, shall be common highways, and forever free, as well to the inhabitants of the said territory as to the citizens of the United States, and those of any other states that may be admitted into the confederacy, without any tax, impost, or duty therefor.”
(2) “Remain public highways:” Act of May 18, 1796, chapter 29, section 9, 1 Stat. 464, 468.
In 1796, in a law governing territory that would become future states, Congress again declared that “all the navigable rivers, creeks, and waters” within the territory “shall be deemed to be and remain public highways.”
Letter to NPS (National Park Service)
National Organization for Rivers
October 3, 2013
An open letter to the directors of the National Park Service in Washington, D.C., and Grand Canyon, Arizona.
Dear National Park Service Directors:
We understand that the National Park Service has erected a barricade, manned by an armed ranger, to prevent the public from navigating the Colorado River through the Grand Canyon.
We also understand that a party of sixteen people, after having paid for and obtained a permit from the National Park Service to navigate the river, and driven from New Hampshire with their rafts and equipment, is waiting in the area for the National Park Service to re-open the river, and that other parties are likewise being denied their legal rights to navigate the Colorado River, the principle river in the southwestern United States.
The first act of the first Congress of the United States declared that the rivers of the nation must remain “forever free” to public navigation.(1) Later Congress again confirmed that rivers “shall be deemed to be and remain public highways.”(2) Early in our nation’s history the U.S. Supreme Court confirmed that rivers are “held in trust for the public” and cannot be closed to navigation.(3) The Court later confirmed that the government is the “guardian” of rivers, so that “free navigation is secured,”(4) and that government authority on navigable waters is subject to the public’s “paramount right of navigation.”(5) Later the Court reconfirmed that government authority on rivers is “subject to the rights which the public have in the navigation of such waters.”(6) In recent times the Court has reconfirmed public rights to navigate rivers in the western United States without permission or approval from the federal agency managing the surrounding lands.(7)
We are well aware that courts have upheld National Park Service authority to close waters within national parks to certain public uses when there are legitimate environmental reasons for doing so, consistent with the agencey’s mission to preserve national parks for future generations. This blanket closure of the Colorado River, however, does not fall within that category. There is no provision in federal law for agencies to close rivers to public navigation merely because they do not currently have the funding that they previously received.
Likewise, the fact that funding may be forthcoming within the next few days does not make this closure lawful today. The public has firm legal rights to navigate the Colorado River today, not just at some undetermined future time.
In other words, it is unlawful to hold public rights to navigate the Colorado River hostage to the political process now unfolding in Washington, D.C. The public has firm legal rights to navigate the Colorado River through the Grand Canyon regardless of when, or if, Congress renews funding for the National Park Service. The public’s legal rights to navigate the rivers of the United States are not dependent on Congressional funding of federal agencies, or lack thereof.
By its actions, the National Park Service is claiming that it does not have sufficient funding to allow the public to navigate the river—which would cost the agency nothing—yet it somehow does have sufficient funding to post an armed ranger to unlawfully prevent the public from navigating the river. This situation is absurd and indefensible.
Consequently, we urgently call on the National Park Service to immediately remove this unlawful barricade to public navigation of the Colorado River.
Eric Leaper | Executive Director | National Organization for Rivers
cc: Members of Congress. The White House. National media.
1 “Forever free:” Northwest Ordinance of 1787, reenacted August 7, 1789, chapter 8, 1 Stat. 50.
2 “Be and remain public highways:” Act of May 18, 1796, chapter 29, section 9, 1 Stat. 464, 468.
3 “Held as a public trust:” Martin v. Waddell, 41 U.S. 367 (1842); Illinois Central v. Illinois, 146 U.S. 387 (1892).
4 “Guardians” of rivers: Pollard v. Hagan, 44 U.S. 212 (1845).
5 “Paramount right of navigation:” Weber v. Board of Harbor Commissioners, 85 U.S. 57 (1873).
6 “Subject to the rights which the public have:” Scranton v. Wheeler, 179 U.S. 141 (1900).
7 Without permission or approval: Montana v. United States, 450 U.S. 544 (1981).
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